Citation Nr: 0721907
Decision Date: 07/20/07 Archive Date: 08/02/07
DOCKET NO. 04-38 104 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
New Orleans, Louisiana
THE ISSUE
Whether new and material evidence has been received to reopen
a claim for entitlement to service connection for
hypertension.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Katz, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1965 to July
1968. This case comes to the Board of Veterans' Appeals
(Board) from a March 2004 rating decision.
The veteran filed additional claims which have not been
appealed to the Board but for which further VA treatment
records were obtained by the RO after the last adjudication
by the RO on the issue at hand. As these records merely
reiterate the point proved by the evidence submitted prior to
the last adjudication by the RO that the veteran in fact has
hypertension and is being treated for hypertension, they are
duplicative and it is not necessary for the claim to be
readjudicated by the RO prior to adjudication by the Board as
a result of their duplicative nature.
FINDINGS OF FACT
1. The RO denied the claim for service connection for
hypertension in a November 1998 rating decision. The
appellant did not perfect an appeal of this decision.
2. Evidence submitted since the November 1998 final rating
decision is either cumulative or redundant of evidence of
record at the time of that decision and is not new and
material.
CONCLUSION OF LAW
New and material evidence has not been presented since the
November 1998 final rating decision, and the claim for
service connection for hypertension is not reopened.
38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
VA is required to notify the claimant of: (1) the information
and evidence needed to substantiate and complete his claim,
(2) what part of that evidence he is responsible for
providing, (3) what part of that evidence VA will attempt to
obtain for him, and (4) the need to send the RO any
additional evidence that pertains to his claim. 38 C.F.R.
§ 3.159. In partial compliance with the duty to notify,
prior to its initial adjudication of the claim, the RO sent
the claimant a letter in November 2003 indicating the need
for further information from the veteran. This defective
notice was not cured by a complete notification letter being
followed by a supplemental statement of the case; however,
the veteran has not been prejudiced by the defective notice
as he was issued a statement of the case in October 2004
including the entire language of 38 C.F.R. § 3.159 and has
been given every opportunity to submit evidence in support of
his claim.
In addition, the RO also advised the veteran about the
evidence and information necessary to reopen the claim for
service connection (citing the correct legal standard), as
well as the evidence and information necessary to establish
entitlement to the underlying claim in its November 2003
letter. Therefore, VA has fulfilled its specific duties to
notify with regard to claims to reopen. See Kent v.
Nicholson, 20 Vet. App. 1 (2006).
VA also has a duty to assist claimants in obtaining evidence
needed to substantiate a claim. Here, the RO obtained the
claimant's service medical records, VA treatment records, and
private medical records. There does not appear to be any
other evidence, VA or private, relevant to the claim at this
time.
The claimant has been provided with every opportunity to
submit evidence and argument in support of his claim and to
respond to VA notices. The claimant has not been prejudiced
by inadequate or untimely notice and any defect with respect
to the notice requirement in this case was harmless error.
The evidence and information of record, in its totality,
provides the necessary information to decide the case at this
time. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 4.2. Any
additional development efforts would serve no useful purpose.
See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis
v. Brown, 6 Vet. App. 426, 430 (1994). The appellant has
been provided the appropriate notice and assistance prior to
the claims being adjudicated by the Board and prior to the
last final adjudication by the RO. Therefore, the claimant
is not prejudiced by the Board's adjudication of his claim at
this time. See Overton v. Nicholson, 20 Vet. App. 427
(2006).
II. Claim to Reopen
By a November 1998 rating decision, the RO denied reopening a
claim for service connection for hypertension because there
was no medical evidence linking the veteran's hypertension to
his service or indicating onset of hypertension in service
but rather indicating onset many years after separation. The
veteran was notified of this adverse rating decision together
with his rights regarding the appeal of a decision that was
adverse to his interests. The veteran did not appeal this
decision and as a result the decision became final.
While the decision became final, final decisions may be
reopened. To reopen a claim, new and material evidence must
be presented or secured. 38 U.S.C.A. § 5108. "The Board
does not have jurisdiction to consider [the previously
adjudicated claim] unless new and material evidence is
presented, and before the Board may reopen such a claim, it
must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.
Cir. 1996). No other standard than that articulated in the
regulation applies to the determination whether evidence is
new and material. See Hodge v. West, 155 F. 3d 1356 (Fed.
Cir. 1998).
New evidence means existing evidence not previously submitted
to agency decisionmakers. Material evidence means existing
evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim.
38 C.F.R. § 3.156(a). Evidence received subsequent to a
final rating decision is presumed credible for the purposes
of reopening a claim unless it is inherently false or untrue,
or it is beyond the competence of the person making the
assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995).
Evidence of record at the time of the last final disallowance
included the veteran's service medical records and some post
service VA treatment records indicating onset of hypertension
many years after separation.
Evidence received since the last final disallowance includes
VA and private treatment records which indicate ongoing
treatment regarding hypertension but do not relate the
condition to service or indicate an onset anytime near the
time of separation. While the evidence is new as it was not
of record at the time of the last final disallowance, it is
not material because it does not relate to an unestablished
fact necessary to substantiate the veteran's claim as it does
not show a relation between the veteran's diagnosis and
service and does not show that onset of the hypertension
occurred during service but rather many years after
separation.
ORDER
New and material evidence having not been received, the claim
for entitlement to service connection for hypertension is not
reopened.
____________________________________________
C. W. SYMANSKI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs